Notes on Intellectual Property Rights and Jamaica’s National Emblems: The Kanye West incident.

By Dr Abiola Inniss Ph.D. LLM

Recently, the question of Intellectual Property Rights arose in the Kanye West and the Government of Jamaica saga. West and his group had gone to Jamaica to hold a series of church service/ concert events and had produced merchandise which combined his business interests and the use of the Jamaican Coat of Arms. After the concert the West team proceeded to advertise the merchandise for sale on his Sunday service website which was met by the disapprobation of the government of Jamaica which requested that he cease the use and sale of merchandise carrying the National symbols since he did not have permission to do so, he complied.

The aftermath of these events saw a brief flurry of activity in which the public interest was engaged on the issue of the use of national symbols and the intellectual property rights attached to them, if any. In the Kanye West incident, many nationals were displeased by the Government and its agencies’ response which seemed to slap West on the wrist for sticking his hand into the cookie jar, and then rubbing it after. West was requested to desist from using the emblem and almost simultaneously praised for complying with the demand as the release from the Jamaica Intellectual Property Office (JIPO) summed it up, “The thing is, once he was advised, he took it down and I think that is the story — at least he showed responsibility in taking it down,” JIPO Executive Director Ms. Lillyclaire Bellamy, as reported in the Jamaica Observer. There seemed to be no real threat of prosecution to West and his team for this act, which may have included the remittance of any proceeds from such sales as had been made to the Government of Jamaica.

The continuing uneasiness and discontentment with the Government response lies in the fact that there does not seem to be any articulated strategy for dealing with infringements in the use of national symbols which says to nationals and non-nationals alike that there are likely serious consequences for anyone who usurps such symbols for personal gain. In the West incident, this gives the impression that respect for and usage of national emblems both by Jamaican nationals and foreign entities, lies within the discretion of the user. Clearly articulated rules on how this would be treated with in the United Kingdom and elsewhere point this out. In New Zealand unauthorized use of the coat of Arms and other national and state emblems is prohibited by the Flags, Emblems and, Names Protections Act 1981. In the United Kingdom there are strict and extensive guidelines for the use of national emblems which fall under a collective Government Identity System, part of which is managed by the Branding Department at No.10 Downing Street and Cabinet Office Communications. There are heavy penalties attached to the unauthorized or misuse of those emblems by anyone.

Jamaicans and other nationals of Caricom should become increasingly concerned about the use of branding, national, and unified government identification systems, because they are representations of the unique historical, social and cultural identity that comprise the ideas of nationhood and nationality. These ideas of nationhood and nationality are not commercial in nature, are not intended to be, and the emblems that derive from them do not fall cleanly within any category of intellectual property rights except in the prohibition of certain acts such as the registration of trademarks. National emblems are the property of the Government and people of a country and are jealously guarded in most countries by rules which determine where, when and how they are to be used, and by whom. As countries in the region begin to attract more than usual interest from foreign governments, corporations, and individuals because of new opportunities such as Guyana’s oil and increased commercial and cultural industries investments, there are going to be challenges made by these entities to all of our management systems in the areas of economics ,commerce, and diplomacy. The image of the easy going, lazy Caribbean life, while it has been the staple for the tourism industry, also gives foreign nationals the idea that rules are not followed, laws are lax, and that everything Caribbean is for sale or can be used freely with impunity. Policy makers must be urged to examine the laws to ensure that where protections exist, they are updated and enforced, and where they are not, enacted.

In the case of Jamaica, the government, meaning both the opposition and party in power, needs to give serious consideration to the use of all of the emblems in the National Government identity system, from symbols used in Mayoral districts to Government ministries, and to the preparation of strict guidelines for their usage. Enforcement of sanctions for infringements in such a system must become a reality. The Jamaican national pride is acknowledged worldwide and is an inherent part of its accomplishments in athletics and culture. National symbols are a representation of the ideas or intangibles of pride, dignity, nationhood, national identity and belonging, and, as previously stated, are the property of the people and government of the country. The Jamaica brand far outstrips any other country in the Caribbean for international recognition, a doubtlessly well-earned reputation and readily acknowledged by those of us who are not Jamaican. Perhaps it should also take the lead in firmly representing to the world an intention to fiercely protect its brand. It is critical that Jamaica and all other Caricom countries pay attention to the management and use of their country brand and national emblems.